The Legality of Ayahuasca

The Legality of Ayahuasca

From a pharmacological and biochemical point of view, one of the vegetal ingredients provides an inhibitor of monoamine oxidase (IMAO) to the concoction, and the other one contains dimetiltriptamine (DMT), a substance that provokes a psychoactive effect to the preparation. None of these elements, which are drank separately, produce psychoactive effects.

Regularly, but not exclusively, both of these plants that are blended together are two Amazonian vines: a) one, popularly known as "ayahuasca", after which the final product is named, scientifically called Banisteriopsis caapi, carrier of the IMAO, b) the other, Psychotria viridis leaves or Diploterys cabrerana, which contributes with the DMT.

The legal misunderstanding that currently weights over ayahuasca (details directly related to jurisprudence included below) is originated from the plants included in the blend that contain DMT. The production and commerce of this psychoactive substance known as dimetiltriptamine (DMT), is prohibited by the 1971 United Nations Agreement on Psychtropic Substances, which includes in the Green List of the United Nations Office on Drugs and Crime (JIFE, for its acronym in Spanish) under code PR-004. However, given the fact that DMT is a substance abundantly found in nature, the UNODC has established the percentual amount of concentration of DMT in a preparation or blend that is considered illegal, which is very much above the percentage found in a natural state (to learn more about the Investigation Case Management System, official release of the UNODC, 2010 edition, see [2]).

For instance, the human body secretes DMT abundantly during the day and pharmacodynamics has emphasized the fact that it is an endogenous substance related to the production of restorative nocturnal dreams. On the other hand, one of the richest vegetal specimens in DMT production is the common reed, botanically called Phragmites Australis, which is the reason why it is senseless to prohibit the natural production of a substance that is related to life on Earth.

Due to this, in the 2010 report of the UNODC on the current situation of drugs in the world, in item 284, it is established that a series of plants and herbal preparations such as the ayahuasca, the iboga plant, peyote, psilocybin mushrooms, among others, are "not under regulatory process based on the 1971 Agreement, neither with the 1988 Assembly", and has been confirmed by the UNODC in its written statement directed to D. Loenen, Director of the International Center for Ethnobotanical Education Research and Service (ICEERS, for its acronym in English) dated June 1st, 2010 and signed by J. Lucas, secretary of the UNODC.

In reference to the Spanish criminal code, in Article number 368 it is stated that it will be penalized with time in prison those who commerce with "toxic drugs, narcotics and psychotropics". Therefore, what needs to be determined is if in the Spanish Criminal Code, ayahuasca is considered a drug, narcotic or psychotropic. This same law states that substances considered as narcotics are the ones included on the lists in the annex on narcotics of the 1961 Vienna Convention: this list does not include ayahuasca (see [3] to consults the official website).

Substances included in the 1961 List I, includes another list, the UNODC Green List, published in May 2010, which adds to what was previously established in conformity with the 1971 Vienna Convention on psycotropics. The 1971 list does not include ayahuasca either (see [4] to consult the official website).

None of these lists of substances internationally regulated include ayahuasca, clearly making the distinction of this vegetal blend chemically called DMT, which is subjected to investigation and regulations.

Furthermore, in Article 2 of the 1971 Convention, it is stated that: "With the exception of express instruction of the opposite or in the situation in which the context demands a different interpretation, the following terms of this Agreement will have the meaning indicated: d) a "psychotropic substance" is any natural or synthetic substance or any other natural material included in List I, II, III or IV", none of them include ayahuasca.

Additionally, and due to several inquiries made by different parties, the UNODC has made several statements specifying the plants that are not included in the 1961 Convention on prohibited psychotropics, and confirming that the only plants that are regulated are those included in the 1961 Convention: cannabis, opium and the coke plant.

On Chapter II, Section 6 ("Vegetal materials that contain psychoactive substances), paragraph 284 and 285, page 51 and 52 of the 2010 UNODC Annual Report published in March 2nd 2011, it is specified which plants contain psychoactive substances of traditional use but that do not affect public health are not prohibited.

The text states:

284 (...) in conformity with the 1961 Convention and with the 1972 protocol amend, plants that are not a source of narcotics, such as cannabis, poppy and coke plant, are subject to specific regulations. On the contrary, although some active ingredients which have stimulant or hallucinogenic effects contained in certain plants are subject to regulations by virtue of the 1971 Convention, currently no plants are under regulation according to this Agreement neither with 1988 Convention. Blends (for example, concoctions for oral consumption) made with plants that contain these active ingredients are not under international regulation either.

285. Some examples of these plants or vegetal materials are (...) ayahuasca, a blend made of plants from the Amazonian region, specifically Banisteriopsis caapi (a jungle vine) and another plant rich in triptamine (Psycotria viridis) which contain several psychoactive alcaloids such as DMT; peyote...)

As a consequence, and emphasizing on the legal arguments, the UNODC specifically states that plants with DMT, such as ayahuasca, are not prohibited according to the International Agreements, since they are not included in the lists annexed to the Agreements aforementioned. Therefore, and since there is no specific law in Spanish legislation, ayahuasca is not a prohibited psychotropic in Spain.

As a consequence to international laws, most Spanish and Latinamerican people who have been detained lately by the police and charged with drug trafficking for having received ayahuasca by mail, have been released free of charge.
These are some examples that could establish a legal precedent:

1) Provincial Audience, Section number thirty, of Madrid, Majadahonda Court number 4, on May 5 2011, states that sentence number 70/2011 Alberto J. Varela is absolved from being charged of attempting against public health for having an important amount of ayahuasca confiscated.

2) Court number 27 of Barcelona, dictated a decree dated January 18 2012, record number 13323, in which it voids the order to detain Fernando Latorre Vazquez, charged with the felony of attempting against public health and drug trafficking, after being persecuted and taken into custody at the time in which was picking up bottles of Ayahuasca coming from South America.

3) The first example in which a sentence was dictated by the Central Court number 3 of Madrid, signed by Teresa Palacios on October 20 2000, in which, after studying the expert reports requested by the Spanish Agency of Medicine, Ministry of Health and Consumption and the National Institue of Toxicology, discontinued all actions against Brazilian accused of drug trafficking for having been detained while entering Spain with several liters of ayahuasca with religious purposes, since they were members of the new Santo Daime church, original from Brazil and officially registered in Spain.

4) The last case, which could be the most recent one in spite of being a trial that took place in Chile, a country that does not have the tradition of ayahuasca usage among indigenous traditions and which is known for its strong posture in favor of prohibition specifically related to psychotropic regulations. Judicial Department number four, oral court tribunal of Santiago de Chile, in the Record of Evidence RIT 229-2011 signed on March 20 2012 in Santiago de Chile, stated that ayahuasca dosis commonly used, and according to the experts consulted, DMT can be found in only 0.05% in ayahuasca, a percentage out of which only 15 to 20% reaches blood circulation. This court states that regular dosis of ayahuasca is not the same as DMT, a substance present in the human body and other mammals. Due to this, all charges agains the accused were dropped and were absolved (judge Geni Morales Espinoza and sentence communicated on March 28 2012 / RIT No 229 - 2011 RUC No 0900858790-3).